The DHS Has Been Using A Fake Mexican Constitution Article To Deport US Citizens For 35 Years

from the every-deportation-justifies-the-lie dept

We're used to our government's security and intelligence agencies telling lies in order to justify their actions. The Director of National Intelligence, James Clapper, has achieved a sort of infamy for his "least untruthful answer" in response to questioning. (Not that this infamy has cost him his job…) Others have performed linguistic aerobics ("not under this program," "relevant to…") to stretch the truth just enough to give their activities a thin veneer of legitimacy.

For more than two decades, Sigifredo Saldana Iracheta insisted he was a U.S. citizen, repeatedly explaining to immigration officials that he was born to an American father and a Mexican mother in a city just south of the Texas border.

Year after year, the federal government rejected his claims, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.

In rejecting Saldana's bid for citizenship, the government sought to apply an old law that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. But there was a problem: The Mexican Constitution has no such article.

NPR calls it an "error." Jeff Gamso, public defender and former criminal defense lawyer, calls it something else.

Our government's been lying to the courts about this since at least 1978 when the Immigration and Naturalization Service first invented Article 314 of the Mexican Constitution as a convenient way to deny citizenship to and thus deport American citizens.

The opinion from the Fifth Circuit Court of Appeals isn't as generous as NPR, either.

DHS officers and the Administrative Appeals Office (“AAO”) within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say.

The DHS, however, was very generous towards its previously uninterrupted 35-year exploitation of a non-existent constitutional article.

Saldana's case was finally resolved earlier this month, when the 5th U.S. Circuit Court of Appeals dismissed the government's explanation of a "typo" and ruled that he had been a citizen since birth.

A "typo." That sounds familiar. The NSA used the same excuse for its collection of tons of domestic data when it claimed analysts accidentally entered US area codes rather than codes tied to foreign countries. It was a "typo," and the DHS never bothered to correct it for 35 years and then only because it was called out by a federal court.

And this isn't the only lie/error in the DHS' case. It also pointed to another article of the Mexican Constitution to deny Saldana's claims of citizenship -- Article 130. Fortunately, for the DHS, this article actually exists. Unfortunately for its hopes of barring Saldana from the country for the fifth time, what it says isn't anywhere near what is claimed.

The AAO also cited Article 130 of the Constitution of Mexico for the same proposition that the Constitution requires that parents be married in order for children to be legitimated. However, Article 130 provides only that marriage is a civil contract, as opposed to a religious one, and says nothing about legitimation or children.

Why would the government repeatedly lie in order to prosecute and deport legal US citizens? Gamso answers this question very succinctly.

Because it can.

It got away with this one for 35 years. Why should it stop? Three-and-a-half decades of reliance on a wholly fabricated article of a constitution it (correctly) assumed no one would actually bother looking up. In retrospect, it seems audacious. But the reality of the situation is that the government got away with a lie for more than three decades and that fact alone is enough to encourage it to deploy useful lies in any situation where it thinks misstating the facts will give it an edge or help it achieve its aims.

Reader Comments

Taking bets as to how many DHS officials will be punished. I offer 1 million to 1 odds that at least one will be, so get rich now!
*Minimum bet $10,000, there is no guarantee of pay-out, all bets must be made to a Cayman Islands account to be provided later*

WHERE'S the tech or economics in this? Here's your charter:

"the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow."

Re: WHERE'S the tech or economics in this? Here's your charter:

Well for one, I'd imagine this is enonomics related because US citizens with skills that businesses are looking for might think twice about coming back to live within the US, now that it's known that the DHS will kick them out based on non-existent constitutional articles.
Long story short, shut the fuck up, quit complaining and come back if (and this is a big if) you're hired to edit articles for Techdirt.

Re: Re: WHERE'S the tech or economics in this? Here's your charter:

"But the reality of the situation is that the government got away with a lie for more than three decades and that fact alone is enough to encourage it to deploy useful lies in any situation where it thinks misstating the facts will give it an edge or help it achieve its aims."

Re: WHERE'S the tech or economics in this? Here's your charter:

Fool!

There's the NSA in this story, so that covers tech.

(But, notice that nothing in that sentence that you point out even hints that Techdirt is only about economics or tech...it covers much broader topics that, yes, may eventually have implications in the economy and the tech sector. But the scope of Techdirt is much broader. And, of course, such a broad scope makes your brain hurt, so you condensed it to "tech or economics". Unfortunately for you, reality isn't so simple.)

Fortunately, now we have the internet those lies will be difficult to pull now.

This reminds me why the actions of Aaron Swartz God bless his soul, were/are so important, he put that knowledge into public domain so everyone could see it, we should do this to all laws in the world so everyone should be able to look up any law they are faced with.

"Why would the government repeatedly lie in order to prosecute and deport legal US citizens? Gamso answers this question very succinctly.

Because it can."

It's a very charitable way of putting it. Charitable towards US citizens.
If I was about to be taken away from my wife and kids, I like to think I'd bother to check out the legal basis of my deportation. I don't know, maybe show it to some lawyer.
35 years. Bonkers.

Re: Re: Re: DHS

> We had discussed this internally. We left
> it as DHS because the court refers to DHS.

Rather than perpetuate a glaring error, I would think the proper think to do in that case would be to note that the court erroneously referred to DHS as committing these deportations during a time when DHS did not exist, and then from that point on refer to the correct agency.

Re: Re: Reminder

Okay, I'll give you that one. Employee was the wrong word. But federal law enforcement officer is also the wrong word(s). Section 1001 deals with anything under the jurisdiction of the three branches of the federal government, which is a lot of latitude.

With that out of the way - Mr. Saldana's immigration status is under the jurisdiction of the executive branch of the government, and I'm sure there is some case file with Mr. Saldana's name on it, meaning there's an investigation and his statements are material to that investigation. He is not allowed to lie to an ICE official - it's a crime. But those very same ICE officials can lie to him about the Mexican Constitution and the legitimacy of his birth to his parents - and they commit no crime.

Re: Re: Reminder

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

Seems to disagree with what you're saying. There are some exceptions, but none that do your argument any good.

Re: Re: Re: Reminder

> Seems to disagree with what you're saying.

So you've quoted the statute. That's step 1. Well done. Now research the court cases that have interpreted that statute over the years and see how the power of the government under this section has been limited by them.

I'd say you'd be laughed out of court if you tried to bring charges against someone for lying to a museum tour guide, but you'd never even get to court. No prosecutor who wanted to keep his job would even touch such a case.

Re: Re: Re: Reminder

After reading this, I'm pretty sure lying to a Park Ranger is illegal. Section 1001 is so broad that it even encompasses any private entity receiving federal funds, or subject to federal regulation. So if you work for a bank, and someone lies to you, since banks are regulated by the government, you just violated Section 1001 - and the bank employee isn't even a federal employee! From the link:

Re: Re: Re: Re: Reminder

EDIT: sorry, if you work for the bank, and someone lies to you, *that someone* (not you) has committed a crime. And case law shows that people have been convicted over such things, like US v. Cartwright.

It's not hard to see how this happens. When a suspected illegal is arrested they are not assumed innocent until guilty. They are not given rights as if they are US citizens. I think it's frightening that this has been happening and I would be surprised that no one from INS knew about it long before now.

Interesting...

Fabrications from the most liberal Administration prior to the current one. I'm shocked! Shocked, I tell you! Not so much....

Libs are well know for their flights of fancy and lies to further whatever cause they think is "right" at the time. This is just one more example. No doubt the citizens deported had voted the wrong way in 76.

What other non-existent laws and regulations?

There is a serious problem for both the INS/IcE and the judiciary. I am appalled this could have happened for 35 years and never was caught.

A more general issue is how often are non-existent laws and regulations are used to convict people; particularly those who have to rely on public defenders. The total number of pages is so vast it is it impossible for someone to completely comprehend them all.